64 So. 606 | Ala. | 1914
In 1874 the South & North Alabama Railroad Company, being then the owner of the soil, laid out and platted the city of Cullman. It laid out First Avenue West so that its east line is coincident with the west line of its right of way. For some time
There is no denial that the construction of a commercial steam railway in a public street, though done under concurring legislative and municipal authority, imposes a burden in excess of that imposed by the original dedication to public use, is an interference with the proprietary right of the adjoining owner where he owns the ultimate fee in the soil, is an exercise of the power of eminent domain by the taking of an estate or interest on his land for which he is entitled to compensation, Which compensation, under the Constitution of this state, must be paid before the property is taken or the injury to the property is done. — Western R. R. Co. v. Ala. G. T. R. R. Co., 96 Ala. 272, 11 South. 483, 17 L. R. A. 474. Nor is it denied that, to the effectuation of this right of the owner, he may have relief in equity by way of injunction. — East & West R. R. Co. v. E. T. Y. & G. R. R. Co., 75 Ala. 275. The single proposition of defendant’s appeal is that complainant, in the circumstances averred, has no estate or interest in the :soil of the street which the court will protect by its writ of injunction, and that complainant’s remedy, if .any she has, is by an action at law for the recovery of her damages.
To the extent of the proposed occupation of the surface of First Avenue West lying to the east of its cen
But we read the bill as complaining only of the invasion of the west side of the avenue in front of complainant’s property. In the soil of that part of the avenue, complainant has the ultimate fee, and the equity of her bill, as against defendant’s improper exercise of the power of eminent domain, must be sustained. Without regard to the provisions of article 2 of chapter 142 of the Code, regulating the registration o-f town lot surveys,' and prescribing the effect of conveyances made with reference to such surveys, indeed, in advance of that statute, it was the settled law of this state that when a landowner lays out his land into lots and
Affirmed.